Abstract
Once again, the Argentine Congress has under consideration a bill for a “Religious Freedom Law.” This issue has been a pending assignment for the country since the return to democracy in 1983. This time, besides granting more effective protection to the right of religious freedom (which is guaranteed by international human rights treaties that have constitutional rank in Argentina), Congress needs to regulate the legal personality of churches, religious communities, and religious confessions, which was recognized by the new Civil and Commercial Code, in force since 2015. In this chapter, the content of the bill will be examined, comparing it with the current legislation in place in Spain, Portugal, Chile, Colombia, Peru, and Mexico. We consider certain novel aspects of this bill, such as the regulation of the right to conscientious objection and the mandate to employers to provide reasonable accommodation in the workplace for the employee´s religious needs. This bill creates a non-mandatory Registry of Churches and Religious Communities, dictates the transition from the current system (enacted by the military regime in the 1970s), and guarantees the internal autonomy of religious bodies. It also introduces reforms to the Argentine Penal Code to punish crimes against religious communities.
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Notes
- 1.
For background of this law, see Navarro Floria (1993).
- 2.
Strictly speaking, the tasks for that objective had begun during the government of President Alfonsín and during the administration by Dr. Juan Carlos Palmero in the Secretariat for Religious Affairs (1987–1989), with whom I also had the honor of collaborating.
- 3.
There have been several bills during that long period, some presented by legislators, others prepared by the Administration, and finally, others presented by civil society organizations, such as the Argentine Council for Religious Freedom (CALIR). For more information about these various bills, among other works, see (Navarro Floria 1997, 2001; Lo Prete 2013).
- 4.
Law 26939, BO 16/6/2014. See (Navarro Floria 2014a).
- 5.
In Italy, like Argentina, there were several proposed laws that were not approved. The most recent and current one is the “Bill of freedom of conscience and religion” prepared by the Astrid Foundation, sent to the Senate on April 6, 2017.
- 6.
This subsidiarity is explained because although the Catholic Church does not need to register in the Registry created by the law, and given that it has a public legal personality derived from its constitutional recognition and reaffirmed by the Civil and Commercial Code, the rights that the law recognizes to the other churches and religious communities should obviously be recognized also.
- 7.
Spain, Article 2(a); Chile, Article 6(a); Colombia, Article 6(a); Peru, Article 3(a). On the other hand, the laws of Portugal, in Article 8(a) and of Mexico, in Article 2(a), (b), speak of “having or not having religion” and of “having or adopting” a belief, respectively.
- 8.
Spain, Article 2.1(a); Chile, Article 6(a); Colombia, Article 6(a); Peru, Article 3(a); Portugal, Article 8(b). The law of Mexico does not include the right to change one’s religion, but it does use the expression “to adopt” a religion just like the ICCPR that establishes such right. The law of Peru specifies that the right to abandon a belief is “according to the proper procedure of each church, confession or religious community,” which is problematic: What would happen if someone wants to leave a church but “their own procedure” does not allow it? Forcing him to stay would be a clear violation of his religious freedom.
- 9.
Spain, Article 2.1(a); Chile, Article 6(a); Colombia, Article 6(a). The laws of Portugal, Mexico and Peru do not expressly refer to the right to manifestation of religion.
- 10.
In some ways, this is also found in the law of Mexico, which contains an unusual provision in Article 4: “The mere promise to tell the truth and to fulfill obligations entered into, subjects the person making it to the sanctions established by law, in the event that such person fails to keep it.”.
- 11.
Spain, Article 2.1(b); Portugal, Article 8(c) and, in more detail, Article 10(a); Chile, Article 6(b); Colombia, Article 6(b), and Peru, Article 3(b). The law of Mexico, on the other hand, says nothing about it.
- 12.
The law of Mexico says nothing about this, but Mexican law does have a rule that is especially understood in relation to indigenous communities: no one may be “obliged to provide personal services or contribute, with money or in kind, to the maintenance of an association, church or any other religious group, nor to participate or contribute in the same way in rites, ceremonies, festivities, services or acts of religious worship.” (Article 2, Section d).
- 13.
This is provided by the laws of Spain (Article 2), Portugal (Article 13, quite extensively), Chile (Article 9(c)), Colombia (Article 8), and Peru (Article 3(c)).
- 14.
- 15.
Portugal, Article 10, and Peru, Article 3(h). The law of Colombia has paid special attention to this issue in a long provision, Article 6(c), to which it adds another one (Article 17) referring to municipal cemeteries.
- 16.
See (Navarro Floria 2017b).
- 17.
Spain, Article 2.1(d); Chile, Article 6); Portugal, Article 8(f); Mexico, Article 2(f); Colombia, Article 6(j); and Peru, Article 3(e).
- 18.
CSJ l870/20l4/CSl, “Castillo, Carina Viviana y otros el Provincia de Salta - Ministerio de Educación de la Prov. De Salta s/amparo”, judgement of December 12, 2017.
- 19.
On this sensitive issue, see (Navarro Floria and Lo Prete 2011).
- 20.
Spain, Article 6.2; Chile, Article 8; Peru, Article 7 (always limited to registered entities).
- 21.
In similar terms, the laws of Portugal, Colombia, in Article 7(b), and Peru, in Article 6(g), recognize the same right.
- 22.
Law 26,522 of 2009.
- 23.
“Religious associations may only, in an extraordinary manner, transmit or disseminate acts of religious worship through non-print mass media, having been previously authorized by the Ministry of Interior. In no case may religious acts be disseminated during radio and television time assigned to the State. In the cases mentioned in the previous paragraph, the organizers, sponsors, concessionaires or owners of the media will be jointly and severally liable with the religious association in question to comply with the provisions regarding acts of public worship with extraordinary character.” Notice the restriction is on the very act of religious transmission: not to mention media ownership.
- 24.
AG/RES. 2888 (XLVI-O/ 16), Approved on June 14, 2016. However, the Proposed Law has omitted the other two paragraphs of the same article from the statement: “3. Indigenous Peoples have the right to preserve, protect, and access their sacred sites, including their burial grounds; to use and control their sacred objects relics, and to recover their human remains. 4. States, in conjunction with indigenous peoples, shall adopt effective measures, to promote respect for indigenous spirituality and beliefs, and to protect the integrity of the symbols, practices, ceremonies, expressions, and spiritual protocols of indigenous peoples, in accordance with international law.”.
- 25.
It is worth remembering that even the Constitution of Argentina of 1853 contained a clause, eliminated in 1994, which entrusted Congress with the “conversion of the Indians to Catholicism” (former Article 67, paragraph 15). In 1994, it was the Catholic Church that asked for its elimination.
- 26.
“Portillo” (ED 133-365). Today, mandatory military service is not required, but in the case of it re-introduction the law itself (No. 24,429) provides for and regulates the exercise of conscientious objection.
- 27.
“Bahamondez” (ED 153-249).
- 28.
“F., A. L. s/Medida autosatisfactiva”, decision F. 259. XLVI., of March 13, 2012.
- 29.
“Diez”, of July 7, 2015.
- 30.
- 31.
For example, there is no substitute performance, in a strict sense, for conscientious objection to performing an abortion, although it is reasonable to expect the objecting doctor or health worker to work in the hospital for the same amount of time, performing other tasks that are not linked directly or indirectly to the objected task.
- 32.
With this criterion, in Argentina, conscientious objection in the "Portillo" case would not have been admitted.
- 33.
A similar rule, but somewhat more restrictive and less detailed, is found in Article 14 of the Law on Religious Freedom of Portugal.
- 34.
ILO Convention 14 of 1921 on Weekly Rest (Industry), and ratified by Argentina (Law 12232, BO 18/10/1935), states that "Rest shall coincide, wherever possible, with the days established by the tradition or customs of the country or region” (Article 2.3). Convention 106, of 1957, on Weekly Rest (Commerce and offices)—which has not been ratified by Argentina—reproduces the same rule but clarifies that “the traditions and customs of religious minorities will be respected, wherever possible” (Article 6.4).
- 35.
CNTrab, sala X, 26/04/2004, “S., M. R. c/ Longseller S.A. s/ despido”, ED 28/7/2004, annotated by Navarro Floria (2015b).
- 36.
I.e. in the national order: resolutions 650/68, 1047/68 and 1325/87 of the Ministry of Education.
- 37.
The law of Peru, however, includes the requirement that “entities” have “creed, sacred writings, moral doctrine, worship, organization and ministry of their own,” which will be difficult for some to prove.
- 38.
In relation to this topic, see (Navarro Floria and Lo Prete 2011).
- 39.
This coincides with Article 35 of the Law of Portugal. There is no equivalent requirement in the other laws of the region.
- 40.
México, Articles 6 and 7; Chile, Article 12; Peru, Article 14.
- 41.
Similar resources are provided for in the laws of Mexico (Article 33–35) and Chile (Article 11).
- 42.
Coincidentally, present in the laws of Mexico (Article 7) and Colombia (Article 10).
- 43.
See (Navarro Floria 2015a).
- 44.
The law of Chile avoided mentioning the Catholic Church by name, making reference only to churches that had their legal status already recognized “at the date of publication of this law,” although jurists unanimously understood that it was a reference to the Catholic Church (and the Orthodox Church of Antioch).
- 45.
This reinforces the interpretation that non-registered churches or communities are not recognized as legal persons.
- 46.
Similarly, the laws of Peru (Article 6), Colombia (Article 14), and Portugal (Article 27). In Chile, the rules of derivative legal entities (Article 9) has been quite complex.
- 47.
Especially, the law of Portugal, in Articles 15.2, 3, and 16, but also Chile (Article 13), Colombia (Article 16), and Peru (Articles 6 and 9). The law of Mexico deals extensively with ministers but restricts their rights, according to their long-standing constitutional tradition (Articles 9 and 15).
- 48.
Similarly, the law of Chile (Article 17), and more generically, the law of Peru (Article 11).
- 49.
Although there is also a confusing expression here, given that it speaks of “religious entities recognized by the State.” The Catholic Church should undoubtedly be included in this concept, and surely, if this proposed law is approved, it should also include the churches and religious communities that register before the RENAER; even if that registration does not exactly create “recognition.”.
- 50.
In this language, the words “turning out to” (“resulte” in Spanish) are not necessary.
- 51.
In 1989, President Alfonsín sent a proposed law to Congress to introduce specific protection of religious freedom into the Penal Code. Because it was not examined, the same proposed law was sent again with some additions by President Menem (Message 1991/92). It was unanimously approved by the Senate on June 16, 1993, and it received commendable comments by jurists [for example, (Frías 1994)]. The approved text may be read in “Trámite Parlamentario” 1993, nº 37 (21/6/93). For another draft of the Criminal Code that considered the topic, see (Navarro Floria).
- 52.
The law of Peru contains a generic rule in this matter, the First Final Complementary Disposition, which is limited to make reference to “current criminal or administrative regulations.”.
- 53.
The laws of Spain (transitory and final provisions), Portugal (Articles 62, 63 and 69), Chile (Article 18), Colombia (Article 18), and Peru (transitory complementary provision) did the same thing.
- 54.
Regarding taxation, the proposed law only refers to laws on this matter that are already in force. This was different from the law of Portugal, which included a regulation of the subject (Articles 31 and 32, very detailed).
- 55.
See (Navarro Floria 2011).
- 56.
In the years 2000 and 2001, being the Secretary of Religious Affairs Norberto Padilla, I was the coordinator of an Advisory Council on Religious Freedom, which was the seed for the later Argentine Council for Religious Freedom (CALIR), currently operating in the non-governmental sector.
- 57.
This issue has been regulated in the law of Portugal, in its extensive Article 19. In contrast, the law of Mexico ratifies the exclusive jurisdiction of the State over acts regarding the civil status of persons (Article 4).
- 58.
Also, in this case, the law of Portugal includes a detailed regulation, in Article 24.
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Navarro Floria, J.G. (2020). The 2017 Proposed Law on Religious Freedom for Argentina: Comparative Perspectives. In: Souza Alves, R. (eds) Latin American Perspectives on Law and Religion . Law and Religion in a Global Context, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-030-46717-3_4
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